Johnny W. Raines v. Charles Traughber, Chairman, Tennessee Board of Paroles

JOHNNY W. RAINES, )
)
Plaintiff/Appellant, ) Appeal No.
) 01-A-01-9508-CH-00364
v. )
) Davidson Chancery
CHARLES TRAUGHBER, Chairman, ) No. 93-1860-III
TENNESSEE BOARD OF PAROLES, )
et al, )
Defendants/Appellees.
)
) FILED
December 18,
2001
COURT OF APPEALS OF TENNESSEE
Cecil Crowson, Jr.
Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ROBERT S. BRANDT, CHANCELLOR
JOHNNY W. RAINES
# 114237
R.M.S.I., UNIT 6
7475 Cockrill Bend Ind. Rd.
Nashville, Tennessee 37209-1010
PRO SE PLAINTIFF/APPELLANT
CHARLES W. BURSON
Attorney General and Reporter
EUGENE J. HONEA
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
ATTORNEYS FOR DEFENDANTS/APPELLEES
REVERSED AND REMANDED
SAMUEL L. LEWIS, JUDGE
O P I N I O N
This is an appeal by petitioner, Johnny W. Raines, from the
trial court's dismissal of his petition for certiorari from a
decision of the Tennessee Board of Paroles (Board).
Petitioner filed his petition on 28 June 1993. The
Chancellor dismissed the petition holding that it was not filed
within sixty days from the entry of judgment.
Tennessee Code Annotated section 27-9-102 provides:
Such party shall, within sixty (60) days from the
entry of the order or judgment, file a petition of
certiorari in the chancery court of any county in
which any one or more of the petitioners, or any
one or more of the material defendants reside, or
have their principal office, stating briefly the
issues involved in the cause, the substance of the
order or judgment complained of, of the respects in
which the petitioner claims the order or judgment
is erroneous, and praying for an accordant review.
The final disposition of petitioner's board of parole
hearing is dated April 30, 1993. It does not bear a date which it
was filed by the Board of Paroles.
The state argues that the date for the running of the sixty
days within which to file certiorari runs from the date that the
last member of the Board of Paroles signed off on the denial of
parole, which is April 16, 1993. We respectfully disagree.
In Carter v. Board of Zoning Appeals, 377 S.W.2d 914, 916
(Tenn. 1964), the Supreme Court in dealing with this issue stated:
In this transcript of the proceedings before the
Board, this order shows a date of Monday, February
11, 1963. However, as stated, the petition for
certiorari alleges the order was not "issued" until
April 24, 1963. Under T.C.A. §27-902, the time for
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filing the petition for certiorari runs from the
entry of the order or judgment and not from the
rendition of the judgment.
The distinction between the "rendition" of a
judgment and the "entry" of a judgment or order was
clearly pointed out by the Court in Jackson v.
Jarratt, 165 Tenn. 76, 52 S.W.2d 137, in which the
Court stated:
"'Rendered' means expressed or announced
in a conclusive manner and with decisive
effect, certainly so when at the same
time notation of it is made on a
judgment docket, or other more or less
permanent memorandum record kept by the
Judge for the purpose. 'The rendi-tion
of judgment, and the entry of judgment,
are different and distinct, each from
the other. The former is the act of the
court, while the latter is the act of
the clerk of the court.
* * * To render judgment is to return or
give judgment; and it can not be said,
in our opinion, that the phrase, in any
of its forms, includes the idea of
making a written entry or record of a
judgment.'" P.79 of 165 Tenn., p. 138 of
52 S.W.2d.
In the Jackson case, the Court held that, although
the then applicable statute (Section 8980 of the
1932 Code) required a motion for a new trial be
made at the term at which the decree sought to be
affected is "rendered," a judgment could not be
entered nunc pro tunc so as to cut off a party's
right to appeal. The distinction between "rendi-
tion" of judgment and "entry" of judgment in the
Jackson case seems to be universally recognized.
Id. at 916.
As we have stated, denial of parole from which the petition
or certiorari is taken is dated 30 April 1993, but does not bear a
date on which it was filed. However, we may presume that the
instrument was not filed before the date contained within it. We
are therefore of the opinion that the document was filed no earlier
than 30 April 1993.
It therefore results that the petition of certiorari was
filed within sixty days therefore, the judgment of the Chancellor
dismissing the petition because it was not timely filed is
reversed. The cause is remanded to the Chancery Court for further
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necessary proceedings. Costs on appeal are taxed to the Board of
Parole.
__________________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
_________________________________
BEN H. CANTRELL, JUDGE
_________________________________
WILLIAM C. KOCH, JR., JUDGE
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